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Sept. 28 — The U.S. Supreme Court may be tinkering with its docket with the expectation that
it will be getting a ninth justice by the end of the upcoming term.

The court has been operating with only eight justices since Justice Antonin Scalia
died unexpectedly in February.

That vacancy seems to be prompting the court to put off hearing oral argument in controversial
cases until later in the term, which typically goes from October to June, Georgetown
University Law Center professor
said at a
.

The justices aren’t eager to hear cases where they might split 4-4, Lederman said.
Those cases, including a class action against Microsoft, are conspicuously absent
from the court’s scheduled oral arguments.

It may be that the court is hoping for a ninth justice to break the tie in those cases,
Lederman said.

Stuck With Hard Cases

Evenly divided decisions leave in place the decision below without setting binding
precedent. The justices badly want to avoid that outcome, Lederman said.

Neither of those hot-button issues are on the court’s oral argument calendars yet,
even though other cases granted later are already set for argument.

All told, the court has 11 cases that it’s agreed to hear but hasn’t yet set for oral
argument, research conducted by think and code shows.

Only two involve relatively non-controversial topics, like patents or bankruptcy.
The remainder include an antitrust dispute involving the biggest banks and credit
card companies in the U.S., a claim of gender discrimination in immigration statutes,
the death penalty and another racial gerrymandering suit.

SCOTUS Tea Leaves

But while Lederman said the court’s scheduling suggests that it might be counting
on a ninth justice by the end of the term, another court watcher said that’s unlikely.

The Senate has made clear that it won’t hold confirmation hearings on the Supreme
Court vacancy during the lame-duck session,
of the Judicial Crisis Network, Washington, said at a
.

There’s not enough time for the next president to take office in late-January, nominate
a qualified individual and have the Senate hold confirmation hearings and vote on
that nominee before the Supreme Court breaks for the term in late-June, Severino,
whose biography says she has briefed Senators on judicial nominations, said.

So holding off controversial arguments in the hope of avoiding 4-4 decisions seems
like a strange strategy, she said.

But Lederman disagreed. No matter who wins the presidency, the president and senate
are likely to act on the vacancy quickly, he said.

Prior to the most recent nomination, “the average time from nomination to confirmation
is 67 days,” according to the
. “The longest time before confirmation in the past three decades was 99 days, for
Justice Thomas, and the last four Justices, spanning two Administrations, were confirmed
in an average of 75 days,” its website says.

Accordingly, we should see someone in the ninth seat by March or April, Lederman said.

Until then, as Lederman put it, court watchers will just have to keep reading the
Supreme Court tea leaves.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington
at
[email protected]

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